Taking Back the Courts

What we can do to reclaim our sovereignty

The Wizard of Oz was one of my favorites movies as a kid. Little did I know judges were so much like the wizard, hiding behind empty trappings of power. This book tells you things you need to know about what really goes on in court. Read it, weep, and then demand that the courts do better.

Chapter List

Foreword by F. Lee Bailey

Introduction by Gerry Spence

Where are we?

We the People must have a place where we can go to make government listen and hold government accountable. The courts can and should be such a place. Yet, the jury system is at risk. Lies, legal doctrines and biases are transforming trials into a privileged arena for judges and the well-heeled to decide what justice requires. Judges assume powers we have never given them. Jurors are lied to and misled. Lawmakers refuse to be accountable for the consequences of their actions in court. Lawyers grow fat and increasingly disengaged from the pursuit of justice. Are we leaving our Constitution in the hands of others to interpret? Do you care enough to demand change?

Who is the Sovereign After All?

Our Constitution limits the powers of government. The Fourth Amendment guarantees our rights against unreasonable searches and seizures without a warrant. Yet, in the decade following the World Trade Center catastrophe, many Americans were prepared to sacrifice liberty for a sense of security. In turn, the nations courts retreated from any meaningful role in protecting a robust sense of liberty. Courts riddled the Fourth Amendment with so many exceptions to the warrant requirement that the words of the Amendment are almost meaningless. Their weapon of choice? A doctrine called qualified immunity. As police power grows, so shrinks our sense of liberty and autonomy. Why are we yielding our freedom without a fight?

Who are the Criminals in Criminal Court?

The American criminal justice system incarcerates a higher percentage of our population and for sentences far longer than our democratic counterparts the world over. Part of the problem? We give too much power to prosecutors and not enough to juries to decide what justice requires. What’s more, judges more often than not work in tandem with prosecutors, deferring to decisions that are often patently irrational and driven by something other than justice. Do the asymmetries of the criminal justice system (like behind-closed-doors plea bargaining and the heinous crime exception to the Bill of Rights) really allow justice to prevail?

Like it or not, the Supreme Court has sanctioned police deception and police officers are trained to lie to get statements and confessions. Innocent men and women are persuaded by police officers to confess to crimes they did not commit with disturbing regularity. DNA evidence exonerates dozens of defendants who confessed to crimes they did not commit. Because the risk of false confession is so great, the state should be required to record the entire interviews. There is no excuse to do otherwise. Next time you are confronted by a police officer, record everything. Make it clear and unambiguous to police officers that you wish to remain silent. Then do so.

Lawyers for All

A universal public defender system for all is long overdue. All Americans should have the right to counsel at government expense when charged with a crime. Prosecutors have virtually unlimited discretion to bring charges and are armed with investigators, state forensic labs experts and the efforts of local, state and national law enforcement. Who can match the government’s spending and resources in defending a crime? Almost no one. There is something wrong with a criminal justice system that empowers victims and permits prosecutors to pursue each and every claim with probable cause. Such a system promotes waste and invites scorn for the law. Why not create a system that funds both prosecution and defense equally?

Fathers and Sons; Is Crime in the Blood?

Norm Pattis’ father, for many years a professional armed robber, sculpted the man he was to become - a self-proclaimed man ill at ease with responsibility, forever on the move, and “living somehow in the shadow that respectability casts.” He will always side with the despised man in a fight. Pattis’ lack of a father places him again and again falling within the orbit of great and powerful men. “The bad luck I endured as a son has been more than compensated for by the mentorship of some great lawyers.” – namely, Gerry Spence and F. Lee Bailey. Pattis has catalogued what he has learned from each of these legends in American law and fights to measure up to their standards.

Experts for Sale

The “CSI Effect” is contaminating the American criminal justice system. Jurors are inclined to give the state benefit of the doubt on questionable claims so long as those claims are dressed up in the guise of expert testimony. Courts and juries are often hoodwinked by fancy rhetoric, words like “forensic” that add no scientific value - but somehow hold substantial weight. Courtrooms are not laboratories, but when a scientist takes the stand to testify, do lawyers and judges advance the search for truth, or get in the way? How many people are convicted by jurors who say, “I’m not sure what all that meant, but it sure sounded good?” Why are the courts so quick to admit questionable scientific evidence?

White Collar Woes

The threat to liberty is greatest in the world of white collar crime, where vague laws, investigative grand juries and seemingly infinite resources can crush virtually anyone, regardless of whether they committed a crime. Offenses like mail fraud, wire fraud and obstruction of justice are so broad and sweeping by definition that almost everyone is guilty of them at one time or another. Grand juries are supposed to protect citizens against abuse of government power and should be open and transparent to those targeted for prosecution. It cannot be good law to permit prosecutors to use secret grand juries to unearth half-truths and not tell the subject about the misperceptions while there is still time to avoid trial.

Black Men, White Justice

Race matters in the United States. The color line still separates and divides in ways that are intolerable. As a person’s life chances are determined largely on the basis of socio-economic class. Many people of color live in the legacy of slavery. The result is an economy and society composed of many different Americas. All too often, the line between haves and have-nots corresponds to the color line. Those forced to the margin, whether white or black, come to believe that the current regime of laws, institutions and social conventions are illegitimate. Whether the bias is racial or economic, something is askew in a nation that promises equality for all and then denies so much to so many.

The War Against Desire

We use images of sex to sell everything from toothpaste to cars, yet once someone takes the sales pitch a little too seriously, we lock them away. Justice demands individual assessments of harm and risk. Yet, “sexophrenic” laws run rampant in the American justice system. Registration as a sex-offender is required for young kids in love, folks looking at the wrong pictures and anyone urinating in public. Worse, the government has the power to retain offenders indefinitely and the detained offender has no right to a jury trial – completely ignoring the Ninth Amendment. The Court justifies this sweeping new federal power as little more than business as usual – and opposing sex offenses is a cheap and easy way to score points politically.

How to Reform Sexophrenic Laws

Regarding the problem “sexophrenia” is posing, the most important criminal justice reform within reach is the elimination of mandatory minimum prison sentences. Lawmakers increasingly resort to a one-size-fits-all mindset when it comes to mandating penalties for crimes, yet offenders are rarely, if ever, identical. Justice requires a measured and calibrated response to the nature of the offense and the character of the offender. Likewise, in cases where liberty hangs on the testimony of a child, in which there is no other witness or any physical proof of harm, it is simply too risky to prosecute. If not, a defendant is left as helpless to combat the claims as the victims at Salem.

Liar, Liar, Robe on Fire

When it comes to the adversarial system of justice, money counts a lot more than liberty. Money is a substitute for justice. When you win a verdict, the case is only halfway done. All a win does is enhance your bargaining position. Is it all right to lie to juries if the lies have a tendency to depress the value of a verdict? When the court bends the rules to favor the state, there is little or no outrage from the public at large. Yet don’t the courts belong to the people?

Jailing the Ill

Just because you are nominally mentally competent, it does not follow that you can conduct a trial. Connecticut’s doctrine of nominal competence states that upon finding a mentally ill defendant is competent to stand trial and waive his right to counsel, the trial court must determine whether the defendant could conduct the trial proceedings without counsel. In other words, the court acknowledges that a person can be mentally ill, but competent. We are now inclined to imprison a deviant rather than treat him. Why are we trying mentally ill or incapacitated people at all?

Too Many Lawyers: Time to Revisit the American Rule

An overconcentration of lawyers has resulted in desperation. What do desperate lawyers do? They sue people. Even if you lose, the American Rule shields both lawyer and client from having to cover the costs of the winner. The American Rule has transformed the American civil justice system into the equivalent of a roulette wheel. Angry clients also drive a significant portion of the plaintiff’s market for legal services. In too many cases, there is simply the raw hatred of a party seeking some sense of validation that the law can never offer. The American Rule offers an invitation to gamble with other people’s fortunes.

Building Better Lawmakers

No lawmaker should be able to seek re-election to a third term unless he or she agrees to serve six months in prison. Lawmakers churn out additions to the penal code annually. When they are not adding new offenses, they are extending the length of those already defined. The penal code is now so vast and complex that we are almost all criminals at least part of the time. We imprison a greater percentage of our population than any other industrialized nation. And the sentences we impose for all manner of offenses are staggeringly long. Lawmakers fresh from a bid in a penitentiary will come to view a 10-year sentence as plenty long and sufficient to punish most crimes.

Introducing Gerry Darrow

We need a trial lawyer with experience defending people on the Supreme Court, someone who knows what it is like to face the government as an adversary. Yet the current court is composed entirely of former federal appeals court judges and legal academics. Those cut from the elite mold of Ivy League law graduates who served either as appellate judges or legal academics are typically clueless about what transpires in our nation’s courts on a day-to-day basis. The bar’s elite will shudder at the thought of an uncouth lawyer sitting atop justice’s pyramid, but the shuddering reflects the conceit of those who view the law as little more than a pyramid scheme.

How About a Trial Lawyer on the Supreme Court?

If there is a crisis in the courts, the crisis arises from the fact that few judges, even on the Supreme Court, have any real comprehension of what a trial is. Trial experience should be required before a judge takes the bench. The Senate should withhold approval of a candidate if they believe it inappropriate to comment on the issues that come before them. The decisions judges make are about real people in crisis. We are entitled to more than the empty promise to be fair and impartial. Let juries speak, put the umpired behind the plate, and leave the game to those who know how to play it.

A Nobel Prize for WikiLeaks?

When democracies committed to transparency and businesses proclaiming the value of open markets seek darkness and a censor’s restraint, it becomes obvious that the reality of power and the façade of rhetoric are on a collision course. Julian Assange and WikiLeaks spoke inconvenient truths to power. They exposed governments as liars, using the internet to tell truths governments would rather hide. Ideas can be suppressed by power, but not forever. Assange and WikiLeaks are not criminals, they are radicals, putting the world’s governments on notice that lies can purchase security for so long. Should we prosecute people for demanding that the government live up to the public faith we profess?

Nullification Now: Sex, Drugs and Race

Our penal code fails miserably when it comes to race, drugs and sex offenses. We incarcerate folks for life for selling narcotics while selling alcohol and nicotine without consequence. We make it a crime for young people to fall in love. And we are doing it to ourselves. Rather than asking questions, jurors make decisions about people without demanding answers about the consequences of their verdicts. We ask jurors to determine guilt without revealing the consequences. Government becomes unaccountable. We must revisit jury nullification and teach juries about the consequences of what they do and of their right to refuse to be used in the detached work of finding so-called facts regardless of the consequences.

The Cheshire Home Invasion: Killing the American Dream

We want to say that justice is blind to class and color, but we all know better. The Hayes case proves it. Had the victims been black and poor rather than upper middle-class white folks, residing in a housing project rather than a bedroom community, there would not be television trucks outside the courtroom and sketch artists watching the trial. There would have been no death penalty sought. Judges and lawyers know this to be true, but are afraid to admit it. The death penalty is not a measure of justice; it is a tool of hatred used more often than not against people of color. The matter of race is far from settled in our society.

The Joy of Sociopathy – The Cheshire Cat Smiles

We are drawn almost against our will to stare at the sorrow of others. In the case of Hayes, we all deny that we could never commit such acts, but we cry for blood in a court of law, hoping and pretending that if we kill in the right way we will avoid becoming just like the killer we love to hate. The jury found Mr. Haynes guilty and voted for the death penalty. Hayes tried to kill himself, but we stepped in to save him so that we could kill him instead. We are similar to Haynes on his killing spree, but better somehow. Justice is not killing, ever. The crimes of Steven Hayes were sick and horrifying. So are the verdicts. And so are we.